Howe v. Heartland Midwest, LLC, WD 82656

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Cynthia L. Martin, Judge
• Citation: 604 S.W.3d 774
• Docket Number: WD 82656
• Decision Date: 14 April 2020
• Parties: Richard "Neil" HOWE, Respondent, v. HEARTLAND MIDWEST, LLC, et al., Respondent, Time Warner Cable Midwest, LLC, Appellant.

604 S.W.3d 774

Richard "Neil" HOWE, Respondent,
v.
HEARTLAND MIDWEST, LLC, et al., Respondent,

Time Warner Cable Midwest, LLC, Appellant.

WD 82656

Missouri Court of Appeals, Western District.

OPINION FILED: April 14, 2020
Application to Transfer to Supreme Court Denied May 28, 2020
Application for Transfer to Supreme Court Denied September 1, 2020

Stephen M. Gorny, Kansas City, MO, for respondent Richard N. Howe.

Frederick K. Starrett and John W. Witten, Leawood, KS, for appellant Time Warner Cable Midwest, LLC.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

Time Warner Cable Midwest, LLC ("Time Warner") appeals from a judgment that confirmed an arbitrator's award and entered judgment in favor of Richard "Neil" Howe ("Howe") and against Heartland Midwest, LLC ("Heartland") in the amount of $350,000. Time Warner argues that the trial court erred in denying its motion to intervene as a matter of right, and in granting Howe's motion to confirm the arbitrator's award. Because Time Warner is not aggrieved by the judgment, it has no standing to appeal. And because the judgment does not resolve all claims as to all parties, the judgment is not final for purposes of appeal. The appeal is dismissed.

Factual and Procedural History

On February 19, 2013, near the Country Club Plaza in Kansas City, Missouri, Heartland was performing horizontal directional drilling services pursuant to an agreement with Time Warner to install fiber optic cable. While performing that work, Heartland ruptured a gas main owned by Missouri Gas Energy ("MGE"). Howe, a construction foreman for MGE, responded to the scene to fix the ruptured main. While Howe was standing in an excavation hole above the ruptured main, Howe felt an explosion behind him and was thrown to the ground.

On April 17, 2017, Howe filed a petition against Heartland and Time Warner¹

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claiming damages for injuries Howe sustained. Heartland and Time Warner both filed answers to Howe's petition. Time Warner also filed a third-party petition against USIC Locating Services, LLC ("USIC"), the entity responsible for marking the location of underground utility lines. USIC filed an answer to Time Warner's third-party petition.

On February 1, 2019, Howe dismissed his claims against Time Warner.² As a result, all that remained pending were Howe's claims against Heartland, and Time Warner's third-party claims against USIC.

On February 7, 2019, in the same proceeding where Howe's petition was initially filed, Howe filed a motion seeking confirmation of an arbitrator's award and the entry of a judgment against Heartland ("motion to confirm"). The arbitrator's award attached to the motion to confirm described an arbitration on January 11, 2019, between Howe and Heartland. The arbitrator awarded damages in favor of Howe and against Heartland in the amount of $350,000.

On February 8, 2019, Time Warner filed a notice of potential intervention ("notice"). In the notice, Time Warner complained that Howe and Heartland had conducted a "secret arbitration" while Time Warner was still a party to Howe's action. Time Warner complained that the arbitrator's award, if confirmed, could impair Time Warner's rights and potential recoveries against interpleaded funds in the United States District Court for the Western District of Missouri.³ Time Warner filed a formal motion to intervene on February 22, 2019 ("motion to intervene"). Howe opposed Time Warner's motion to intervene, and argued that his claims against Time Warner had been dismissed with prejudice, and that Time Warner had no responsibility to satisfy his judgment against Heartland.

The trial court conducted a hearing on the motion to confirm and the motion to intervene on February 25, 2019. Counsel for Howe, Heartland, Time Warner, and USIC appeared. USIC's counsel explained that she was present because USIC "[was] brought in as a third-party defendant by Time Warner," and remained a party in

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the action because Time Warner's third-party petition was still pending.

In addressing the motion to confirm, Howe argued that he was free to separately resolve his claims against Heartland by whatever means he desired, including arbitration, and that Time Warner had no right to interfere with Howe's resolution of his claims against Heartland, especially as Time Warner had no responsibility to pay any judgment entered against Heartland. When asked by the trial court, Time Warner confirmed that Howe had the right to separately settle or otherwise resolve his claims against Heartland without Time Warner's assent. Time Warner nonetheless argued that the arbitration had been a sham proceeding designed to permit Howe to collect money out of the interpleaded funds in the federal district court action.

In addressing the motion to intervene, Howe repeated that Time Warner had no interest in the arbitrator's award, or its confirmation, because Howe had dismissed Time Warner with prejudice, and Time Warner had no risk of liability for the arbitrator's award. Time Warner reiterated that its right to intervene stemmed from its interest in the interpleaded funds in the federal district court proceedings.

When asked by the trial court, USIC's counsel advised that USIC had no position on either the motion to confirm or the motion to intervene, and just wanted to "make sure Time Warner [is] going to dismiss us." Time Warner's counsel responded, "[w]e're working on that."

After hearing the parties' arguments, the trial court indicated that it would take both motions under advisement. The trial court noted that it would only rule on the motion to intervene, however, if the trial court believed there was a need to do so.

On February 26, 2019, the trial court entered a judgment indicating that "upon receiving a Motion for Confirmation of Arbitrator's Award and having reviewed said arbitrator's award, pursuant to Missouri Revised Statutes [section] 435.400, et seq., [the court] hereby issues judgment in favor of Plaintiff Richard ‘Neil’ Howe against Heartland Midwest, LLC, in the amount of $350,000" ("Judgment"). The Judgment made no reference to Time Warner's motion to intervene. The docket sheet supplied with the record on appeal does not reflect that Time Warner's motion to intervene was ever ruled on by the trial court. Nor does the docket sheet reflect that Time Warner has dismissed its third-party petition against USIC.

Time Warner filed this appeal from the Judgment.

Analysis

Time Warner asserts two points on appeal. Both identify the Judgment as the trial court action from which the appeal is taken. Time Warner's first point claims the trial court erroneously denied Time Warner's motion to intervene. Time Warner's second point claims the trial court erroneously granted the motion to confirm the arbitrator's award.

Although neither Time Warner nor Howe have raised the issue of our appellate jurisdiction, we are required to determine sua sponte whether we have jurisdiction to hear this appeal. Maly Commercial Realty, Inc. v. Maher , 582 S.W.3d 905, 910 (Mo. App. W.D. 2019). "The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." McClain v. Landmark Equity Grp., LLC , 584 S.W.3d 383, 387-88 (Mo. App. W.D. 2019) (quoting First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners' Ass'n Inc. , 515 S.W.3d 219, 221 (Mo. banc 2017) ).

There are two issues presented by the record which implicate our jurisdiction to

604 S.W.3d 779

entertain this appeal: Time Warner's standing to appeal, and the finality of the Judgment. We address the issues separately.

Time Warner is not aggrieved and does not have standing to appeal the Judgment

Section 512.020,⁴ the statute which governs the right to appeal, affords the right of appeal to "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause...." "A party who has not been aggrieved by a judgment has no right or standing to appeal." T.V.N. v. Mo. State Highway Patrol Criminal Justice Info. Servs. , 592 S.W.3d 74, 79 (Mo. App. W.D. 2019) (quoting Jackson Cty. Bd. of Election Comm'rs v. Paluka , 13 S.W.3d 684, 687 (Mo. App. W.D. 2000) ). "[A] party cannot be said to be ‘aggrieved,’ unless error has been committed against him." Shoate v. State , 529 S.W.3d 869, 876 (Mo. App. W.D. 2017) (quoting Fenton v. Thompson , 352 Mo. 199, 176 S.W.2d 456, 460 (Mo. 1943) ). "Courts have a duty to determine if a party has standing prior to addressing the substantive issues of the case." T.V.N. , 2019 WL 5874670, at *2, 592 S.W.3d 74 (quoting CACH, LLC v. Askew , 358 S.W.3d 58, 61 (Mo. banc 2012) ).

a. Time Warner does not have standing to assert its first point on appeal because the Judgment does not include a ruling on the motion to intervene

Time Warner's first point on appeal claims the trial court's Judgment erroneously denied the motion to intervene. However,...